from the offering-very-little,-almost-too-late dept

Better late than never, there finally appears to be some Section 702 reform efforts underway in Washington DC. Tech companies have been oddly silent over the last several months, allowing the government to fill the void with demands for a clean, forever reauthorization.

The reform bill [PDF], titled the USA Liberty Act, allows for the renewal of Section 702 authorities, but with some minor alterations. First off, the bill codifies the NSA's voluntary shutdown of its "about" email collection. If passed intact, the bill would prevent the NSA from collecting "about" communications until 2023. It also adds some warrant requirements for searches of 702 content by law enforcement agencies, including the FBI.

The warrant requirement doesn't change anything for collection access for "foreign intelligence" reasons, but at least elevates law enforcement access requirements, bringing it in line with the more-stringent demands of wiretap applications. This will hopefully prevent the government from browsing harvested communications for evidence of minor criminal activity.

Agencies like the FBI will still have warrantless access to 702 metadata but, importantly, won't be able to use this metadata as the sole source of probable cause when requesting a warrant. Unfortunately, this access will have little to no oversight as the FBI won't be required to run its metadata search plans past a court first.

The bill would still allow the CIA, NSA, FBI, and other agencies to search through emails, text messages, and phone calls for information about people in the U.S. without a probable cause warrant from a judge. Those worried that current or future presidents will use Section 702 to spy on political opponents, surveil individuals based on false claims that their religion makes them a national security threat, or chill freedom of speech should be concerned that these reforms do not go far enough.

There are a few more positive to the bill as written. It requires semi-annual reporting on incidentally-collected communications -- information the ODNI still hasn't turned over to oversight committees despite years of requests.

It also extends whistleblower protections to government contractors, something that has been pointed out repeatedly but ignored by legislators when crafting whistleblower bills.

On the downside, it increases the penalty for the unauthorized removal of sensitive documents to five years in prison (up from one year) and adds an additional charge for prosecutors to toss at whistleblowers and leakers: negligent removal of classified documents.

It's certainly better than the nothing legislators have been offering for months, but it needs more work before it can be considered anything more than a minor facelift. A warrant requirement is nice, but essentially meaningless when the FBI and other agencies can still access what they're looking for without having to speak to a judge.

from the wanna-try-that-again dept

No matter what you think of the passage of the USA Freedom Act, you should be able to agree that it wouldn't have been possible without Edward Snowden's contributions. Even many of the Senators who were against reform are grudgingly admitting this. On the floor of the Senate, Majority Leader Mitch McConnell spat out that the USA Freedom Act was a "resounding victory" for Snowden as if it were some sort of insult. The only guy who seemed really confused by all of this was Rep. Pete King who somehow argued that the (very limited) reform bill spelled "defeat for ISIS, Edward Snowden and Rand Paul" which is not only wrong, but nonsensical.

However, perhaps more interesting is President Obama's statement on the passing of the USA Freedom Act, which snaps at those in Congress who delayed its passage and then "thanks" those who made it possible:

If you can't see that, it reads:

For the past eighteen months, I have called for reforms that better safeguard the privacy and civil liberties of the American people while ensuring our national security officials retain tools important to keeping Americans safe. That is why, today, I welcome the Senate's passage of the USA FREEDOM Act, which I will sign when it reaches my desk.

After needless delay and inexcusable lapse in important national security authorities, my Administration will work expeditiously to ensure our national security professionals again have the full set of vital tools they need to continue protecting the country. Just as important, enactment of this legislation will strengthen civil liberty safeguards and provide greater public confidence in these programs, including by prohibiting bulk collection through the use of Section 215, FISA pen registers, and National Security Letters and by providing the American people with additional transparency measures.

I am gratified that Congress has finally moved forward with this sensible reform legislation. I particularly applaud Senators Leahy and Lee as well as Representative Goodlatte, Sensenbrenner, Conyers, and Nadler for their leadership and tireless efforts to pass this important bipartisan achievement.

Notably missing from all that? Ed Snowden. Without him, none of this would have happened. And, it's beyond misleading for the President to pretend that he's the one who's been calling for this kind of reform for 18 months. First off, that was only in response to Ed Snowden revealing the program and, second, while some of the key reforms in here needed legislative action, he could have stepped up and done some of it on his own -- something his administration refused to do for 18 months.

At the very least, you'd hope that the President could acknowledge the simple fact that, like it or not, this entire process was kicked off because of Ed Snowden's actions. Instead, the President's chief spokesperson continues to demonize Snowden:

The fact is that Mr. Snowden committed very serious crimes, and the U.S. government and Department of Justice believe that he should face them. And that’s why we believe that Mr. Snowden should return to the United States where he will face due process, and he’ll have the opportunity -- if he returned to the United States -- to make that case in a court of law. But obviously our view on this is that he committed and is accused of very serious crimes.

Doesn't anyone in the White House recognize just how silly it is to claim that it's a "very serious crime" to reveal a program that two separate White House advisory boards, a district court and an appeals court, and multiple Senators aware of the details of the program have said is illegal and/or unconstitutional? And then to celebrate (very mild) reforms that only came about because of those actions, while at the same time calling those actions "very serious crimes"?

from the because-of-course dept

No matter what some are claiming, there are some important reforms in the USA Freedom Act. It doesn't go far enough, and the bill is far from perfect, but as a starting point it has some value. But with three provisions expiring last night, while the Senate looks to finally vote on the USA Freedom Act, it has allowed Mitch McConnell to "fill the tree" with really bad amendments, rather than with actually useful amendments that would improve the USA Freedom Act. Chances are that McConnell's amendments won't pass either -- and the original version of the USA Freedom Act will make it through. But the whole situation should just be a reminder that whatever happens this week, we still need significantly more reform before the abuses of the intelligence community are truly limited and stopped.

from the we-need-reform dept

As you likely know, barring some sort of last minute deal this weekend (which is a distinct possibility) a few sections of the PATRIOT Act are set to expire (or, as the cool kids are saying: "sunset"). It is not -- as some have falsely claimed -- the entire PATRIOT Act ending. It just a few pieces -- with most of the publicity focused on Section 215, which had been the rationale for the bulk phone records collection that was the first big leak from the Snowden documents. There's been a bit of a debate among some about whether or not this sunset is really that important, beyond the clear symbolism of finally killing off part of the PATRIOT Act. Two of the people I most respect on privacy and surveillance issues -- Jennifer Granick and Julian Sanchez -- have come down on seemingly different sides of the issue, so it seemed worth comparing what they had to say (and realizing that they're really not that far off from each other). Granick takes the position that letting the provisions sunset is important and a big deal. She admits that it's still limited:

If Congress does nothing, section 215 will sunset. And this is exactly what reformers should be asking for. The fact is, sunset is the only thing that will definitely stop massive spying under section 215. It won’t stop mass surveillance more generally, but killing the law that NSA and FBI have abused for years is the first step.

But, still, she says, it's important and will have an impact. In particular, she notes that while basic reform -- a la the USA Freedom Act -- might have made sense before, "the political winds have shifted." In particular, she points to the the big 2nd Circuit appeals court ruling that noted that Section 215 never really authorized the bulk records collection program in the first place -- along with a growing number of elected officials who appear to believe the intelligence community has gone too far. Her fear, is that if we passed something like the USA Freedom Act, it will take away any chance at real reform, whereas sunsetting may force the issue:

Americans want real, not symbolic change. Sixty percent of likely voters from both political parties believe the rules on surveillance have to become more restrictive. Groups that were heavily involved in the USAF compromise negotiations are concerned that if it doesn’t pass, if 215 sunsets, civil liberties advocates will have to struggle to ensure that something worse than USAF doesn’t become law. But there’s a clear and present danger that if USAF passes, everyone will pat themselves on the back for a job well done, suspicionless domestic spying will continue, the amazing and expansive Second Circuit opinion will be mooted, and it’ll be suspicionless spying as usual until the next big surveillance provision, section 702 of the FISA Amendments Act sunsets at the end of 2017, and we’re in the same position again. The truth is, this struggle to be a robust democracy in the face of the threat of terrorism, is here to stay, regardless of what happens in the next week or so.

So, let’s don’t just do something, let’s stand here. Let’s let 215 sunset. It was unthinkable a month ago. Today it’s likely. In combination with the Second Circuit opinion, the sunset will, irrefutably, put laws on the books that will end domestic dragnets. Then, let’s get serious. Let’s have hearings, really understand all the spying being done in our name, how the information is being used. Let’s set up real, comprehensive, robust checks and balances, starting with declassifying interpretations of law and changing the role of the FISA judges.

On the flip-side, however, we have Sanchez, who argues that the benefits to sunsetting Section 215 are massively overstated. He highlights how the intelligence and law enforcement communities have a number of other authorities under which they have collected similar "bulk" records, and that they would likely shift to pretty quickly after Section 215 goes away.

But while "Sunset the Patriot Act" makes for an appealing slogan, the fact remains that the vast majority of the Patriot Act is permanent—and includes an array of overlapping authorities that will limit the effect of an expiration.

While section 215 covers business records, section 214, also known as the "pen register/trap & trace" authority, covers the acquisition of communications “metadata” (things like dialed phone numbers and email or Internet Protocol addresses) in real time.

Years before the current version of the NSA telephone program under 215 was born, the government employed similar arguments to persuade the secret Foreign Intelligence Surveillance Court (FISC) to bless a bulk program vacuuming up international internet metadata under the aegis of section 214. Though that program was ended in 2011—likely at least in part because NSA was able to obtain much of the same data by collecting it overseas, with fewer restrictions—the authority is permanent.

Also permanent are National Security Letters or NSLs, which that allow the FBI to obtain a more limited range of telecommunications and financial records without even needing to seek judicial approval. Unsurprisingly, the government loves these streamlined tools, and used them so promiscuously that the FBI didn’t even bother using 215 for more than a year after the passage of the Patriot Act. Inspector General reports have also made clear that the FBI is happy to substitute NSLs for 215 orders when even the highly accommodating FISC manages a rare display of backbone. In at least one case, when the secret court refused an application for journalists’ records on First Amendment grounds, the Bureau turned around and obtained the same data using National Security Letters.

Even worse, there's actually something of a "grandfather clause" that will let the NSA keep on keeping on anyway:

Even 215 itself doesn’t really expire when it expires. In theory, the law reverts to a pre–Patriot Act version of the business records authority that is restricted to records that "pertain" to a suspected foreign agent or terrorist—language the government is sure to read as broadly as possible. But thanks to a little-noticed grandfather clause in the law, the current souped-up version of the law, which covers any records “relevant” to an authorized national security investigation, will remain available for investigations already open at the time of sunset, as well as new investigations into offenses committed before the sunset. Since the FBI routinely maintains massive “enterprise” investigations covering entire terror groups, which can continue for years if not decades, we can expect section 215 to have a lengthy afterlife.

In short: sunsetting may be symbolic, but it won't really change much on its own. Sanchez points out that what we really need is real reform -- and his fear is that by focusing so much on championing the "sunset," people advocating for such a solution may miss out on then adding the necessary surveillance reforms that are needed beyond that:

...the celebration may not only be premature, but counterproductive if the impending expiration is perceived as a substantial victory in itself. Some legislators and activists are now so fixated on the symbolism of sunsetting "the Patriot Act" that they’re even urging opposition to broader reforms.

Sanchez readily admits that the USA Freedom Act isn't perfect either, but that it does have many features that are important:

That’s not to say that the USA Freedom Act is by any means an ideal alternative, or that its critics shouldn’t use the sunset of 215 as leverage to push for stronger reforms. USA Freedom, for instance, doesn’t even touch massive surveillance within the United States under section 702 of the FISA Amendments Act, or the even more massive spying enabled by Executive Order 12333, a Reagan-era order that covers surveillance conducted outside the United States. But the Freedom Act does at least cover the full range of Patriot Act authorities that employ the "relevance" standard, preventing a tricky shell game that simply moves collection from expired authorities to permanent ones.

The way USA Freedom seeks to do this is also hardly perfect: The law creates a streamlined process for obtaining specific telephone records from multiple phone carriers (addressing objections that a massive NSA database was the only way to avoid the cumbersome necessity of serving many companies with orders for records stored in incompatible formats) and requires that, across all these authorities, "specific selection terms"—like a phone number or billing address—be used to identify the particular records sought. That means instead of evaluating whether an entire database might be “relevant” when considered in aggregate, the court would have to consider whether the government had demonstrated the relevance of the particular records corresponding to a set of selection terms.

Both are very interesting reads -- and while they appear to be taking the opposite viewpoint, they really are a lot closer than they may appear on the surface. Both are advocating for the need for real surveillance reform, going beyond just this program. Both recognize that sunsetting Section 215 is largely symbolic. Where they differ is in their thinking about how best to get there. Sanchez worries that the sunset will be seen as "mission accomplished" and real reform won't occur. Granick fears the same "mission accomplished" feeling with the too weak USA Freedom Act.

To be honest, they both may have a point. The common message remains there, however: we need real surveillance reform to stop an awful lot of bad activity on the part of the intelligence (and law enforcement) community. Sunsetting Section 215 is a possible step. USA Freedom is another possible step. Either one, on their own, is not nearly enough.

That said, the fact that either are seriously on the table is a huge step forward on its own. For years, surveillance has only expanded. And we're actually at a rare point in history where things are going to go the other way. Now we just need to make it meaningful in creating something that goes beyond either just sunsetting or just USA Freedom.

from the line-up-the-fud dept

Earlier this week, the House voted overwhelmingly in favor of the USA Freedom Act, which takes some small steps towards limiting the NSA's surveillance efforts. And, in fact, as Rep. Justin Amash has pointed out, many of the no votes actually came from people who felt USA Freedom doesn't go nearly far enough (which is true). As we mentioned at the time, the fight now moves to the Senate, and the opening gambit is that Senator Mitch McConnell has pushed out a "short term" reauthorization, that would just renew Section 215 through July 31st, supposedly to give the Senate more time to "debate" this issue. This is as opposed to his original bill that renewed it through 2020.

A bipartisan group of lawmakers on Thursday issued a clear and direct joint statement declaring their intent to oppose any extension of the Patriot Act's expiring surveillance authorities that does not end the National Security Agency's bulk collection of U.S. call data.

"We will not agree to any extension of the NSA's bulk-collection program, which has already been ruled unlawful by the Second Circuit Court of Appeals," the group, which includes Sens. Patrick Leahy and Mike Lee in addition to Reps. Bob Goodlatte, John Conyers, Jim Sensenbrenner, and Jerrold Nadler, said.

Meanwhile, on the flip side, you have McConnell and Senate Intelligence Committee boss Senator Richard Burr spewing pure nonsense about how not renewing Section 215 will somehow put us all at risk:

"We're not taking up the House bill," Senate Intelligence Committee Chairman Richard Burr, another defender of the NSA, told reporters Wednesday. "The program as designed is effective, and members are reluctant to change things that are effective just because of public opinion."

Burr said he views the USA Freedom Act as "one and the same" as allowing the Patriot Act provisions to expire entirely. "Because when you do away with bulk storage, you basically have an unworkable system in real-time," he said.

Almost everything Burr states above is totally false. First of all, the program "as designed" is not effective. That's the conclusion of almost everyone who has looked at the details. The White House task force set up to study the program said that it couldn't find any terror attacks stopped by the program. Three Senators on the Intelligence Committee have said the program has never been useful. The Privacy and Civil Liberties Oversight Board (PCLOB) could find no justification for the program. A district court judge, Richard Leon, spoke out about how surprised he was that the DOJ presented no evidence that the program was useful.

How stupid does Burr think everyone is to then go out there and claim that the program is "effective" and that the Senate believes it's effective.

Separately, the argument that "doing away with bulk storage" creates an "unworkable system" makes no sense either. Given the recent 2nd Circuit ruling, it also appears to be advocating for a program that is both illegal and unconstitutional.

And, of course, that raises a separate point. Even if the Senate does a clean renewal of Section 215, the court has already ruled that that law does not allow for such bulk collection/storage. So, Burr can't claim it's necessary to renew 215 to keep bulk collection, since the law does not actually allow that.

A lot of this is just idiotic political posturing. As Amash notes, this may all just be a game by McConnell and other surveillance state supporters in the Senate to water down an already weak USA Freedom Act bill to make it even less useful (or worse).

Either way, this is all going to come to a head next week. The Senate wants to get this done by the 22nd of May (even though Section 215 doesn't expire until the end of the month), as they're not supposed to be in session the final week of the month. Stay tuned for next week...

from the more-improvements,-but-a-few-worrisome-concessions dept

The USA Freedom Act is back in another attempt to rein in the NSA -- one that was sabotaged twice last year. A bill under this name was first introduced in the House, which actually passed out of committee, but only after being gutted in response to pressure from the administration. A much better version was introduced by the Senate, but this one never managed to make it out to the floor for a full vote -- held back by NSA defenders who portrayed its Section 215 reforms as somehow more damaging to privacy than an unrestrained NSA.

This House bill heads into committee with only a few weeks remaining before certain provisions of the Patriot Act are due to expire, including the Section 215 bulk records program. Sen. Mitch McConnell has done what he can to lower this bill's chance of success. Shortly before USA Freedom was to be introduced into Senate, he delivered a bill that would authorize a "no questions asked" renewal of these provisions until the end of 2019. Thanks to his position as Majority Leader, he was able to bypass the committee vote and bring it straight to the floor.

This version of USA Freedom is obviously a vast improvement over the previously-eviscerated House bill, but there are still concerns on both sides of the issue. NSA defenders will probably oppose it because it supposedly goes too far. Civil liberties defenders will oppose it because it doesn't go far enough. The ACLU has already expressed its concerns about the pending legislation.

“The disclosures of the last two years make clear that we need wholesale reform. Congress should let Section 215 sunset as it’s scheduled to, and then it should turn to reforming the other surveillance authorities that have been used to justify bulk collection,” said Jameel Jaffer, the group’s deputy legal director.

What the bill does do is fix a lot of what was broken on its last trip through. The legislation would end the Section 215 bulk records collection and force the NSA to perform targeted requests for phone metadata from telcos. It would also provide an avenue to challenge the use of this data in court by adding a requirement to serve notice to those whose records were accessed. In addition, it would make National Security Letter gag orders challengeable by those companies served with one and require a "periodic review" of outstanding non-disclosure orders to ensure they're still valid.

What it doesn't do is actually end Section 215. It would end the bulk collection but "emergency" requests could still be made to circumvent the additional search restrictions USA Freedom imposes. It also preserves the NSA's ability to deploy roving wiretaps.

"I obviously want it to go further, closing the backdoor search loophole and the like," the Oregon Democrat said. "But I think Sen. Leahy's effort to end the collection of all of this personal information ... are very important and I'm in support of it."

Considering McConnell's last-minute maneuvering to save Section 215 from alteration or expiration, there will probably be others who will throw their support behind this bill rather than see the bulk records collection remain intact for the next half-decade. If nothing else, it's at least a step towards serious surveillance reform.

The article is the typical FUD from surveillance state supporters, talking about terror threats and ISIS up front to keep you scared, followed by insults directed at Ed Snowden, and finishing off with a "we need this information to keep us safe" conclusion. Straight out of the classic surveillance state apologists' handbook. The attack on whistleblowing by Snowden is particularly ridiculous:

But for the last year, various groups have sought to curtail our intelligence activities based on selectively presented, maliciously leaked documents about anti-terror programs that are widely misunderstood and whose effects have been wildly exaggerated.

These programs, which are subject to multiple levels of oversight by all three branches of government, have been crucial in stopping dozens of terror attacks, including plots against the New York Stock Exchange and the New York City subway system.

First of all, the groups have actually been looking to protect Americans' Constitutional rights and freedoms. And, the job of the head of the Intelligence Committee is supposed to be to protect those rights -- not to defend the NSA. But Nunes appears to see himself in the mode of his predecessor, Mike Rogers, who always viewed his key job as defending the NSA, rather than overseeing it. Second, the "oversight" claims have all been shown to be exaggerated in the past -- and all three branches of government have alsopresented evidence of both widespread abuse and that these programs were illegal and/or unconstitutional.

Finally, the programs have not been shown to be crucial in stopping terror attacks, and each of the claims made saying that have been largely debunked -- including the bomb plots Nunes names (which were debunked within days of first being claimed).

Shouldn't we be concerned that the guy in charge of "oversight" of the NSA is spreading debunked arguments in favor of the NSA spying and unconstitutional privacy violations? Shouldn't that disqualify him from the job?

from the onto-the-next-round dept

So, this evening the USA Freedom Act failed to get the 60 votes it needed for cloture to "advance" to a full floor vote. It ended up at 58 to 42. There was a short debate prior to the vote, and the debate was... stupid. Yes, there are some legitimate concerns with the USA Freedom Act, mostly in that it doesn't go far enough. But that's not what the debate was about at all. You had a bunch of bizarrely clueless Senators, many of whom insisted they were against the act because it would take the bulk collection out of the hands of the NSA and put it into the hands of the telcos -- with the claim being that the NSA could keep that data safer. Senators Susan Collins and Saxby Chambliss kept harping on that point. But it's flat out wrong. Because the whole point of this is that the telcos already have this data. The debate is between "telcos have the data" and "telcos and NSA have the data." Arguing that telcos-only is inherently more likely to lead to a privacy violation makes no sense at all.

Chambliss went further, repeating (over and over again) that it's okay for the NSA to have this data because only 22 people have access to it. Of course, as Marcy Wheeler points out, that's not true. 22 people can authorize a search based on "reasonable articulable suspicion" but many others can access the results. Furthermore, as Harley Geiger points out, the problem is not even at the point of access, but collection, and there's nothing in the law that says the limit is always 22. Frankly, the whole 22 people debate seems strange to me. Is Chambliss really arguing that it's okay to violate the 4th Amendment if only 22 people can do it?

Separately, Senator Dianne Feinstein very reluctantly supported the bill, noting that she's very afraid that if this bill doesn't pass, the whole Section 215 program will go away. Frankly, that actually sounded like a good reason not to support the bill. She also kept insisting that it wasn't being abused because there were only "288" searches last year on that data. First of all, 288 already seems like quite a lot to me, and again we go to Marcy Wheeler for the fact check, where she points out that it's not 288 searches, but rather 288 "selectors," which could be queried multiple times (and those selectors could scoop up lots of data).

Hopefully, it turns out that Senator Feinstein's "fears" on this bill were accurate, and that it leads to the end of Section 215 altogether. But, the completely bogus debate over this effort just highlights how ridiculous the idea is that the Senate has any sort of "oversight" over the NSA, or that it has the interests of the Constitution or the public in mind.

from the because-that's-how-politics-work dept

Hillary Clinton is, of course, making her big Presidential campaign book tour, commenting on all sorts of big issues, as she gears up for the real campaign. It's causing some controversy, of course, including her wacky, angry response to Fresh Air host Terry Gross simply asking if she had changed her opinion on gay marriage (Clinton refused to directly answer the question, and when Gross called her on that, Clinton accused her of trying to claim she changed her opinion for political reasons, even though that was pretty clearly not Gross' intent). However, in that same interview, Clinton also took some ridiculous and uninformed shots at Ed Snowden. After Gross pointed out that Clinton's husband, former President Bill Clinton, had called Snowden an "imperfect messenger" but also suggesting that perhaps the national security state has gone too far, Hillary said:

Well, I usually agree with my husband, but let me say on this point that there were many ways to start this conversation. And in fact, the conversation was starting. Members of Congress - a few notable examples like Senator Wyden and Senator Udall and others - were beginning to raise issues that it was time for us to take a hard look at all of the laws that have been passed and how they were implemented since 9/11.

The president was addressing this. In fact, he had given a speech that basically made that point shortly before these disclosures were made. And of course, I think it's imperative that in our political system, in our society at large, we have these debates. So I welcome the conversation. But I think that he was not only an imperfect messenger, but he was a messenger who could have chosen other ways to raise the very specific issues about the impact on Americans. But that's not all he did.

Of course, this is misleading to wrong. Lots of defenders of the President on surveillance like to point to his speech at the National Defense University a couple weeks before the first Snowden revelation, but that speech did not address the issues now being discussed at all. It mostly focuses on fighting overseas, and actually (a few times) praises the work of the intelligence community and how useful that's been. That was not starting any sort of real debate. As for Wyden and Udall -- they'd been making these points for years and having them virtually ignored by most, in both the press and among their colleagues (we wrote about it, but we don't count).

There were other ways that Mr. Snowden could have expressed his concerns, by reaching out to some of the senators or other members of Congress or journalists in order to convey his questions about the implementation of the laws surrounding the collection of information concerning Americans' calls and emails. I think everyone would have applauded that because it would have added to the debate that was already started. Instead, he left the country - first to China, then to Russia - taking with him a huge amount of information about how we track the Chinese military's investments and testing of military equipment, how we monitor the communications between al-Qaida operatives. Just two examples.

Except, of course, the failure of Wyden and Udall's claims to get any attention made it quite clear that reaching out to Senators wouldn't help. And he did reach out to journalists. But, of course, Clinton's former boss has also been using the Espionage Act against leakers and journalists at an astounding rate. If Obama hadn't been doing so, perhaps Snowden would have been more comfortable just sharing a few documents. However, knowing that there was a good chance he was about to disappear for life, it makes sense that Snowden handed over the whole pile of documents to Greenwald and Poitras. And, yes, this is one of the consequences of Obama's use of the Espionage Act. It encourages leakers to leak big while they can.

If Clinton honestly thinks everyone would have "applauded... because it would have added to the debate," she is either clueless about how people have responded to various similar (less explosive) leaks, or trying to rewrite history in her favor.

And the whole "go to China and Russia" bit is tired, old and misleading. As is the suggestion that he took any of that info to Russia. That's been debunked in the past, no need to do so again.

"Laws that were passed after 9/11 gave the executive very broad authority ... what has happened is that people have said, OK, the emergency is over and we want to get back to regular order," she said.

"It's a really difficult balancing act, but you are absolutely right that we need to make some changes to secure that constitutional right to privacy that Americans are due."

Wait, what? If it weren't for Snowden, we wouldn't even be having the debate about the PATRIOT Act, and there wouldn't be a discussion about "the emergency is over." Hell, to hear Keith Alexander talk about it, the "threat" is bigger now than ever before. Because fear is the key.

Separately, notice that Clinton doesn't actually back any real proposal for reform, but just sorta dances around the idea that maybe reform is good. It's the ultimate in political nothingness. Stake out a bunch of vague positions without anything concrete that can come back to haunt you later, and do it all while bizarrely attacking the guy who made the issue an issue in the first place. And people wonder why the public is so cynical about politicians.

from the shut-up-and-have-your-constitutional-rights-violated-people dept

When last we wrote about Washington Post columnist and knee-jerk defender of the surveillance state, Walter Pincus, he was writing bizarre, factually incorrect claims about Glenn Greenwald (claiming Greenwald was associated with Wikileaks when he was not). When this massive error (on which Pincus based his entire column) was pointed out, Pincus eventually, grudgingly admitted to being wrong, but somehow couldn't figure out how to update his story.

While a long and detailed "correction" was eventually placed on the article, Pincus continues to blindly support the surveillance state, and his latest column whines about how the NSA may have to stop violating the 4th Amendment and suggests that this will lead us to being attacked again. Even worse, he argues that this will be the fault of "complainers" while his poor friends at the NSA will take the blame:

If there is another attack, today’s complainers may be as much at fault as the intelligence community, which nonetheless will get most of the criticism.

The crux of his argument is actually the preceding sentence, which is based on a flawed belief that the more you collect, the more likely you are to find the threats:

If the White House and Congress make changes now under discussion, it looks like the NSA may be collecting fewer dots and a smaller number of people will have access to all of them — so connections may be missed.

Of course, connections may be missed for any of a long list of reasons -- including the reasons that connections were missed that would have highlighted the 9/11 terrorists: the intelligence community screwed up. Having more information is generally not the solution, because that just makes it harder to find the relevant information. Even more bizarre, Pincus' argument is the equivalent of saying that we should have no privacy at all, because it might stop a single terrorist attack, despite no evidence to support that.

What amazes me about these defenders of the surveillance state is that they seem to have no concept at all of a "cost/benefit" analysis. To them "more" is always better, no matter what the costs. The idea that there are costs to doing all this doesn't even enter into the equation. This makes for poor policy and incredibly dumb analysis.